10 Politics and the judiciary
It may seem strange to link the description of the structure and functions of
the judicial system with the further elaboration of the working of American
politics; but in fact no proper understanding of the political system can be
attained without a clear realisation of the role of the judges, and in particular
of the justices of the Supreme Court of the United States, in the way in which
policies are made and implemented. Politics, in the broadest sense, has an
impact at all levels of the American judicial system, and equally the courts
play a vitally important part in the way in which the government of the coun-
try is carried on. This is not to suggest that judges are necessarily politically
motivated, in a narrow partisan sense, in coming to decisions. A large section
of the American judiciary, certainly most federal judges, are of an extremely
high calibre, but they cannot escape the responsibility of making decisions
which in most countries are usually taken by the legislature or by executive
officials. Some of the most significant decisions in American political history
have been taken not by president or Congress, but by the Supreme Court,
acting in its judicial capacity to settle disputes arising under the laws and
Constitution of the United States. The extent of this power, the way in which
it is exercised, the motivations and opinions of the men who exercise it, and
its results for the American polity, are all factors that the political scientist
must attempt to assess.
The Supreme Court and judicial review
The Constitution of the United States briefly sets out certain broad, and
rather vague, principles for the organisation and operation of government.
It set up three branches of the government: a legislature, a chief executive
and a judiciary; it recognised a division of power between federal and state
governments and set out broad categories of federal power; it guaranteed
certain rights to the individual, and set certain limits to the exercise of power
by the federal and state governments. These rules still stand today, hardly
altered at all in formal terms, yet applying to a country that has changed
dramatically since 1787. However, these rules by their very nature are virtu-